Page - 277 - in Austrian Law Journal, Volume 2/2015

ISSN: 2409-6911 (CC-BY) 3.0 license www.austrian-law-journal.at Fundstelle: Benedek, Kosovo – UNMIK accountability: Human Rights Advisory Panel Finds Discrimination in Privatization Cases, ALJ 2/2015, 277–284 (http://alj.uni-graz.at/index.php/alj/article/view/50). Kosovo – UNMIK accountability: Human Rights Advisory Panel Finds Discrimination in Privatization Cases Wolfgang Benedek*, University of Graz Abstract: The Human Rights Advisory Panel (HRAP) established in 2006 to strengthen the ac- countability of UNMIK in Kosovo so far has dealt mainly with cases regarding property and missing persons. In two recent cases of members of the Egyptian and the Serbian minority (Fillim Guga and Nevenka Ristić) it also dealt with privatization of socially-owned enterprises and found discrimination on ethnic grounds by the Special Chamber of the Supreme Court, estab- lished by UNMIK for such cases, which raises the accountability of UNMIK. In doing so the panel applied Article 14 of the ECHR on prohibition of discrimination in conjunction with Article 6 ECHR on fair trial in the light of relevant jurisprudence of the European Court of Human Rights. It also pointed out that in these cases the Special Chamber did not recognize a prima facie case of indi- rect discrimination and did not apply the principle of reversal of proof as required by the Anti- Discrimination Law of Kosovo. On behalf of UNMIK, the Special Representative of the Secretary- General defended the findings of the Special Chamber. The conclusions and recommendations in the Opinion of the Panel hold UNMIK accountable for the violations found and require it to take immediate and effective measures including an apology and adequate compensation for non-pecuniary damage as well as urging EULEX and other competent authorities in Kosovo to reopen the case by the Special Chamber. The work of the HRAP raises wider issues of accounta- bility of international missions like UNMIK, to which it makes an important contribution. Keywords: Kosovo; Human Rights Advisory Panel; accountability; discrimination; European Convention on Human Rights. I. Background There has been strong criticism of the lack of accountability of the United Nations Mission in Kosovo (UNMIK), which operated since its establishment in 1999 under a veil of immunity as the government of Kosovo.1 It was endowed with practically unlimited powers although the Provi- sional Institutions of Self-Government (PISG) in Kosovo were successively given a larger role. In 2000 an independent international ombudsman was established by UNMIK, which, however, * Wolfgang Benedek is Professor at the Institute of International Law and International Relations of the University of Graz and Director of the European Training and Research Centre for Human Rights and Democracy of the Uni- versity of Graz. 1 See HUMAN RIGHTS WATCH, BETTER LATE THAN NEVER, ENHANCING THE ACCOUNTABILITY OF INTERNATIONAL INSTITUTIONS IN KOSOVO (2007), https://www.hrw.org/sites/default/files/reports/kosovo0607web.pdf; see also BLERIM REKA, UNMIK AS AN INTERNATIONAL GOVERNANCE IN POST-WAR KOSOVA: NATO’S INTERVENTION, UN ADMINISTRATION AND KOSOVAR ASPIRATIONS (2003); and generally CARSTEN STAHN, THE LAW AND PRACTICE OF INTERNATIONAL TERRITORIAL ADMINISTRATION. VERSAILLES TO IRAQ AND BEYOND (2008).